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The Health Act 2017 (the ‘Act’) aims to create a unified health system that aligns with the Constitution, by spearheading regulatory changes and coordinating the interrelationship between the national and county government.

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KHF team attending the workshop

MOH/IFC Workshop

The KHF team represented the private sector at a two-day workshop on the implementation of the Health Act 2017 held in Naivasha on 1-2 February 2018. This brought together a diverse and inclusive group of participants to contribute towards work plans for the operationalization of the Act. Participants included stakeholders from the Ministry of Health, Ministry of Agriculture and Irrigation, the Public Service Commission, and the private sector as well as County representatives, regulators, and development partners. The objective was to foster a greater understanding of the Act, encourage dialogue and collaboration and finally, create implementation work-plans on key areas of the Act.

Opening Remarks and Keynote Address

Njeri Mwaura, Senior Health Specialist, IFC/World Bank Group, highlighted that the Act represented a historic moment for Kenya since it tries to bring together all the stakeholders in the health sector and recognized the importance of health for the economy.

Prof. Khama Rogo, Lead Health Specialist, IFC/World Bank Group reminded the attendees that the health sector had been relying on the Public Health Act, which was put together in the 19th century. The professor highlighted that for transformation of the health system to be brought about there was a need for a change in mindsets that accommodated:

  • Collaboration between the public and private sector but also collaboration within the public sector itself;
  • Recognition of the devolution of health and that ‘our vision of this constitution is that each sector will work only if the center shrinks and the counties expands’

He commended the Act for recognizing the ‘3 Ms’ of health (money, man power and management) that have been problematic and said the Act had the potential to deal with the lack of accountability and lack of efficiency within the sector.

The incoming and outgoing Principal Secretaries, Mr. Peter Tum and Mr. Julius Korir respectively, encouraged the stakeholders present to work effectively towards implementation of the Act.  It was recognized that the Act was not perfect but provided a springboard to jump-start the process of transformation.

Overview of the Act

The Head of the Department of Standards, Quality Assurance and Regulation, Dr Annah Wamae OGW described the Act as a ‘mother act’ since it aims to build on and update regulations of the Kenyan health system. She recognized some of the following areas as being particularly significant:

  • The right to reproductive health and emergency treatment in line with the Constitution of Kenya 2010;
  • Creation of a health information system which will require all healthcare providers to report on national indicators;
  • The role of the private sector in achieving universal healthcare through public private partnerships;
  • Recognition of E-Health as a mode of service and the need to catch up with the private sector in this regard; and
  • The development of health financing that ensures appropriate funding for healthcare.

Dr Wamae explained that a steering committee at national level has been established as well as 9 Technical Working Groups (‘TWGs’) as listed below:

  1. MOH Organizational Structure and Duties of National Government;
  2. Kenya Health Professions Oversight Authority ad Traditional Alternative Medicine
  3. Kenya Blood Transfusion Service and Organ Transplantation
  4. Legislation and Regulations
  5. Kenya Food and Drug Authority
  6. Promotion and Advancement of Public Health/Lactation Stations
  7. Research and E-Health
  8. Health Financing
  9. Human Resources for Health Advisory Council

The steering committee and TWGs shall start working on a prioritized work plan, oversee implementation and create quarterly progress reports.

ha2Panel Discussion

Panelists, James Mwenda (AG Legal Counsel), Belinda Kamar (IFC Legal Counsel), John Gichuru (MOH Legal Counsel) and Mary Wangai (MOH) who were involved in bringing the Act to fruition, answered questions on areas of concern in the Act. During the discussion, the panel emphasized that the TWGs would work on further regulations to unpack issues in line with the intention of the Act.

Key Points:

  • There was a collective concern over the right to emergency medical care. S. 91(b) of the Act requires both public and private sector healthcare providers to provide emergency care services whether there is a compensation mechanism in place or not. The panel recognized the importance of the provision in relation to the Constitution but conceded that compensation mechanisms need to be operationalized urgently for this provision to work.
  • Section 86(2)(f) of the Act states that prices for health products shall ‘correspond’ to KMSA market prices. There was concern as to what the process of price setting will entail and how incentives will be given to the private sector. Regulations shall have to clarify this area in an equitable way.
  • Another question on S86 related to what would happen to the IRA if the private sector would have to report to a new finance oversight mechanism. The panel said the TWG would have to consider whether the Insurance Regulatory Authority (IRA) was the best place for private sector regulation of insurance.
  • Part VII of the Act calls for the formation of a single regulatory body for health products and technologies. Since this is very broad, one attendee pointed out that this could even include animal health products. The panelists agreed that further legislation would be required to define the scope of the regulatory body. The panel explained that the intention behind the section was to avoid legal cases where regulatory bodies are fighting over the scope of their mandate.

Group Work

In order to facilitate further dialogue, there were break out sessions where the attendees were divided into the following TWGs to form draft implementation working plans:

  1. Research and E-Health;
  2. Promotion and advancement of public and environmental health;
  3. Health financing;
  4. Kenya Food and Drug Authority (KFDA);
  5. Kenya Health Human Resource Advisory Council (KHHRAC);
  6. Kenya Health Professions Oversight Authority (KHPOA); and
  7. Human Organs and Gametes

This exercise allowed the attending experts to give their perspectives on how to best further implementation. The KHF team split up to ensure that private sector representatives contributed to each of these discussions. The summary below outlines some of the issues that were unpacked during this exercise.

Conclusion

The Health Act 2017 has the potential to build a unified national health system. The retreat marked a stride forward towards appropriate implementation of the Act. The KHF team shall continue to contribute to the process of implementation as representatives of the private sector.

Group Work Summary

 

Technical Working Group Key Points
Research and E-Health

 

Research: The urgent task is to form the National Health Research Committee as stipulated by the Act and create a health research policy.  These foundational steps will allow the Committee to create a research agenda.

E health: Part 15 of the Act stipulates that an E-health Act must be passed within 3 years of the assent of the Health Act. The E-health unit at the MOH will be responsible for this. The TWG recognized that collaboration with the ICT unit would be necessary.

Promotion and advancement of public and environmental health

 

This team recognized that there are a number of policies and bills already in place or being processed that can be relied on for implementation of Part 8.

S 71 and S72 require lactation stations to be established in all work places. Regulations dealing with inspections and specifications need to be drafted to put this into practice.

Health financing There is a need for further clarifications through regulations and amendments on the following areas:

  • National Health Insurance System: establishment of a health coverage regulatory authority and a task force to consider the best way to do this. The term health coverage was preferred over health insurance because it included medical plans that would not be captured by the Insurance Act.
  • Emergency Medical Care: It is necessary to design rules and guidelines for emergency and disaster reimbursement which clearly define the scope of the obligations under the right
  • Pharmaceutical services pricing: A pricing model needs to be designed in collaboration with the KFDA that is responsive to the market needs.
Kenya Food and Drug Authority (KFDA) It was pointed out that the mandate of food safety is with the MOH. The main challenge relates to how this will be coordinated to ensure the regulations adapt to current systems. The first step would be to finalize the KFDA bill and hold stakeholder and parliamentary consultations
Kenya Health Human Resource Advisory Council (KHHRAC) The first step would be to establish the KHHRAC by choosing nominees in line with the Act, appointing a chairperson and appoint a CEO.
Kenya Health Professions Oversight Authority (KHPOA) and traditional medicine It was recognized that the idea of having an oversight authority came from benchmarking South Africa. There is an emphasis on self-regulation with an oversight authority setting minimum standards. The group discussed how gender mainstreaming should be taken into account when choosing representatives.

Traditional medicine: A policy needs to be developed for traditional medicine through stakeholder engagement.

Human Organs and Gametes

 

The team discussed drafting a bill based on key missing parts in the Act:

  • A policy on organs
  • Formation of a regulatory body to deal with human products.

It was suggested that gametes should not fall in this category because there are distinct complexities that arise when dealing with gametes that should be regulated separately. There were questions as to whether this should be looked at by a new TWG.

The Human Tissue Act Cap 252 would need to be reviewed and used where in line with the Act. There is a working transfusion service but there is a need to set up the same for organs.